Karnataka High Court
Mr Venugopal vs The State - Through The on 26 December, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.6017/2012
C/W
CRIMINAL PETITION No.7351/2012
In Crl.P.No.6017/2012:
BETWEEN:
1. Mr.Venugopal,
Aged 48 years,
S/o Late Narayana Kottari,
Residing at Mangalore,
Dakshina Kannada District.
2. Mr.Tharanatha Alva,
Aged 40 years,
S/o Babu Alva,
Residing at House No.1,
26/4, Alape, Padil Post,
Mangalore,
Dakshina Kannada District. ... PETITIONERS
[By Sri. Jaykumar S.Patil Senior Counsel for
Sri.P.P.Hegde, Advocate]
AND:
The State- through the
Police Inspector,
Mangalore Rural Police Station,
Mangalore.
2
(Represented by the State Public Prosecutor,
High Court of Karnataka,
Bangalore). ... RESPONDENT
[By Sri. Rajesh Rai.K., HCGP]
This Criminal Petition is filed under Section 439
Cr.P.C praying to enlarge the petitioners on bail in Crime
No.229/2012 of Mangalore Rural Police Station,
Dakshina Kannada, for the offences punishable under
Sections 143, 147, 148, 447, 448, 341, 323, 324, 504,
506, 354, 395 read with Section 149 of IPC and Section 2
(A) (B) of KPDLP Act and under Section 13 (a) (b) of the
Unlawful Activities (Prevention) Act, 1967.
In Crl.P. No.7351/12:
BETWEEN:
Sri.Naveen Sooringe,
Aged about 28 years,
S/o Sundar Shetty,
Residing at "Ritha Nivasa",
Kanakabettu,
Sooringe Post & Village,
Mangalore-575 030. ... PETITIONER
[By Sri. S.Balan, Advocate]
AND:
The State of Karnataka,
By Mangalore Rural Police,
Mangalore-575 030. ... RESPONDENT
[By Sri. Rajesh Rai.K., HCGP]
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This Criminal Petition is filed under Section 439
Cr.P.C praying to enlarge the petitioner on bail in
C.C.No.2520/2012 on the file of the JMFC III Court,
Mangalore, for the offences punishable under Sections
120(B), 143, 147, 148, 447, 448, 114, 341, 323, 324,
325, 504, 506, 509, 354, 395 and 505 (b) (c) of IPC and
Sections 3 and 4 of the Indecent Representation of
Women Act, 1986 read with Section 34 of IPC.
Reserved on : 12.12.2012
Pronounced on : 26.12.2012
These Criminal Petitions having been heard and
reserved for orders, coming on for pronouncement of
order this day, the Court made the following:
ORDER
Petitioners- 1 & 2 in Criminal Petition No.6017/2012 arraigned as Accused Nos. 6 & 7 and
petitioner in Criminal Petition No.7351/2012 arraigned as Accused No.44 in C.C. No.2520/2012 on the file of the JMFC-III Court, Mangalore, have presented these petitions under Section 439 of Cr.P.C. seeking an order to enlarge them on bail.
2) These petitioners along with others, have been chargesheeted by Mangalore Rural Police, 4 Mangalore, for the offences punishable under Sections 120-B, 143, 147, 148, 447, 448, 114, 341, 323, 324, 325, 504, 506, 509, 354, 395 r/w. 149 IPC and Section- 2(A)(B) of Karnataka Prevention of Development and Loss of Property Act (for short, 'KPDLP Act') 1989. In addition to the above, Accused No.44 is also chargesheeted for the offences punishable under Section 505 (1) (b) & (c) of IPC and Sections 3 & 4 of the Indecent representation of Women Act, 1986 r/w. Section 34 of IPC.
3) The case of the prosecution in brief is as under:-
CW.1- Vijay, working as an Event Organizer in Mangalore and his friend CW.9-Kum. Sanjana @ Sanjanaraj had invited their friends CW.2-Gurudutt Kamath, CW.3-Arjun, CW.4-Prajwal, CW.5-Jayaraj, CW.6-Sri. Marlan D'Soza, CW.7-Sri. Jaisan and CW.8- Arvind Raichur, to the place called 'Morning Mist' a Home Stay located in Battalagudde near Padil Junction of Alape near Mangalore to celebrate their birth-day in the 5 evening of 28.07.2012. All of them proceeded to home-
stay around 3.00 PM in two cars and at about 4.00 'O' Clock, they cut the cake in the presence of their friends and after having food, when they were talking to each other, at about 6:00 p.m., the accused persons numbering about 40 to 50 came in a group near the said house along with media people, barged into the house, started assaulting the complainant and his friends by hands and also by using sharp instruments like folding blades, etc. When the complainant ran into the bathroom and locked himself inside, the assailants broke the door, dragged him out side by tearing his shirt and made him half-naked. At the same time some of the assailants caught hold of the girls, used force on them by touching their body and tore their clothes. At that time, they snatched away the gold ornaments worn by the complainant and his friends and cash amounting to Rs.10,000/-, abused them in filthy language. The media people, videographed the entire incident by lifting the faces of the girls and the boys inside the house. The 6 incident went-on for about 15 to 20 minutes and by that time, the police came there. On seeing the police, the assailants, who were inside the house, went out of the house and the victims were given protection and thereafter, they were taken to hospital. In respect of the said incident, CW.I lodged a report at about 9:00 p.m. on the same day, based on which case in Crime No.229/2012 came to be registered and investigation was taken-up. During investigation, the petitioners in Criminal Petition No.6017/2012 were arrested and then subjected to judicial custody. After completing investigation, charge sheet came to be laid by showing the accused- 25 to 44 as absconding. After filing the charge sheet, the petitioner in Criminal Petition No.7351/2012 was arrested and later he was subjected to judicial custody. The applications filed by these petitioners for grant of bail came to be rejected by the learned Sessions Judge. Therefore, the petitioners are before this Court.7
4) The petitions are opposed by the Respondent-
State.
5) I have heard Sri. Jayakumar S. Patil, learned Senior Counsel appearing for the petitioners in Criminal Petition No.6017/2012, Sri. S. Balan, learned counsel appearing for the petitioners in Criminal Petition No.7351/2012 and Sri. K. Rajesh Rai, Learned Government Pleader appearing for the Respondent- State.
6) Sri. Jayakumar S. Patil, learned Senior Counsel, contended that there are no reasonable grounds to believe that the petitioners in Criminal Petition No.6017/2012 were members of the assembly, which has been described as unlawful assembly, nor there are any circumstances to indicate that the petitioners had shared the common object. He further contended that the overt-acts attributed against these two petitioners arraigned as Accused Nos. 6 & 7 in the charge sheet would prima facie indicate that they had not shared the 8 alleged common object since even according to the allegations made in the charge sheet, Accused Nos. 6 & 7 along with Accused Nos. 5, 8 & 20 were standing at the door of the house and thereby they prevented the complainant as also the other witnesses from going out of the premises. Therefore, learned Senior Counsel contended that there are no reasonable grounds to believe that they are guilty of any of the offences punishable with death or life imprisonment, therefore, they are entitled to be enlarged on bail. Learned Senior Counsel placing reliance on the decisions of the Apex Court in the cases of Shri Gurubaksh Singh Sibbvia and Others Vs. State of Punjab [ (1980) 2 SCC 565; Bhagirathsinh, S/o. Mahipat Singh Judeja Vs. State of Gujarat [ (1984) 1 SCC 284 and Sanjay Chandra Vs. Central Bureau of Investigation [2012) 1 SCC 40., drew the attention of the court to the principles to be borne-in-mind by the Court at the time of considering the application for bail.
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7) Sri. S. Balan, learned counsel appearing for the petitioner in Criminal Petition No.7351/2012 contended that there are no circumstances to indicate that Accused No.44 accompanied the other accused persons, but on the other hand, he came there after hearing the news as a representative of the visual media and therefore, there are no reasonable grounds to indicate that he had shared the alleged common object with other accused persons and that in furtherance of the said common object, he has committed any acts, resulting in any offence. He further contended that even according to the allegations in the charge sheet, Accused No.44 has not videographed any of the events there, but he said to have asked the faces of the victims to be lifted for proper videography. He further contended that there is no prima-facie materials to indicate that Accused No.44 was responsible for the telecast of the event in the T.V. Channels, therefore, there are no reasonable grounds to believe that he is guilty of any of the offences alleged. He further contended that, regard being had to 10 the nature and gravity of the offences alleged as well as the punishment prescribed for the same, the petitioner is entitled to be enlarged on bail. He further contended that though accused No.44 being a representative of visual media was very much available in the district of Mangalore and has even attended many official functions and meetings after obtaining passes from police department which indicates that he had not absconded, but the police while filing chargesheet have deliberately showed him as absconding. He contended that, accused No.44 went to the scene of occurrence after getting information through his news sources over his phone, and at that place after seeing group of about 30 persons barging into the premises, attacking the boys and girls inside, and molesting the girls and also cameramen running behind the assailants and recording the incident of assault and molestation, informed the police through his mobile phone and thus he was a whistle blower, but later he has been shown as an accused.
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8) Per contra, learned Government Pleader opposed the grant of bail contending that at this stage the materials available on record prima-facie indicates that these petitioners along with other accused assuming the role of civil police and to create fear in the minds of general public about their group by getting publicity through media, after hatching a conspiracy, in order to prevent the complainant and his friends from celebrating birthday party, came near the scene of occurrence forming themselves into an unlawful assembly by sharing common object of disrupting the party and at that place, after committing trespass into the house, assaulted the complainant and his friends, tried to outrage the modesty of the girls inside the house by using criminal force on them and tearing their clothes, robbed the gold ornaments and also cash from their possession and to create a fear in the mind of public at large, got the entire event videographed with the help of the media people who had accompanied them and later the event was telecasted repeatedly and therefore, there are reasonable 12 grounds to believe that these petitioners are guilty of the aforesaid offences. He also contended that, regard being had to the nature and gravity of the offences, as well as the punishment prescribed for the same, the petitioners are not entitled for the bail. He further contended that the repeated telecast of the videographs taken, has caused more damage to the reputation and dignity of the complainant and his friends than the actual injury caused to them and this incident has created a kind of fear in the minds of the public through-out the State. He contended that the incident was a calculated attack on women and the likelihood of these petitioners indulging in similar activities, if they are released on bail, cannot be ruled-out. Therefore, he contended that, release of these petitioners on bail is not in the public interest. Therefore, he sought for dismissal of the petition.
9) I have bestowed my anxious considerations to the submissions made on both sides and perused the copies of the charge sheet papers made available. 13
10) Before considering the merits of the case, it is necessary to briefly note the principles laid down in the above noted decisions.
11) In Gurubaksh Singh's case referred to supra, the Apex Court has ruled that, "the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
12) In Prahlad Singh Bhati Vs. NCT, Delhi [(2001) 4 SCC 280], the Apex Court has laid-down the following principles, which the court must consider for granting or declining bail at Para-8:
"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep 14 in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of ' the evidence' which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima-facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.".
13) In Bhagirathsinh's case referred to supra, the Apex Court has held that, if there is no prima-facie case, question of considering the other circumstances 15 does not arise. But, even where a prima-facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
14) In Sanjay Chandra's case referred to supra, after referring to several earlier decisions on the point, the Apex Court has held thus in paragraphs- 21 to 23 as under:-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts 16 owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.17
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- convicted person for the purpose of giving him a taste of imprisonment as a lesson."
In Para-40 of the said judgment, the Apex Court has observed thus:-
"40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and 18 at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required."
Keeping the above said principles in mind, let me consider the case on hand.
15) According to the allegations in the charge sheet, Accused Nos. 1, 4, 9, 12, 15, 16 & 18 were involved in an earlier incident of attack on a pub and attempt to outrage the modesty of women in the said pub and other anti-social acts, and have been facing trials before different courts in the District. It is further alleged in the charge sheet that the aforesaid accused persons through their illegal activities, wanted to create a kind of fear among the public in the locality about the members of the said group for that purpose, a criminal conspiracy was hatched by the aforesaid accused along with other accused persons and in furtherance of the said 19 conspiracy, all of them came near the Morning Mist Home-Stay, where the complainant along with his friends was celebrating his birthday and with a view to prevent that party being conducted, the accused persons trespassed into the house and committed acts of assault causing hurt, criminal intimidation, outraging modesty of women, etc. and also committed acts of dacoity by robbing valuable things from the persons of complainant and his friends, and the entire event was videographed which was later repeatedly telecasted in different T.V.Channels.
16) No doubt according to the allegations in the charge sheet, the overt-acts attributed against Accused Nos. 6 & 7 are that, they along with three other accused persons stood at the door of the house and thereby prevented the complainant and his friends from going out of the house, as such, they have committed the offence of wrongful restrainment. However, reading of the statements of CWs. 1 to 9 would prima-facie indicate that 20 accused Nos. 6 & 7 also came near the house along with other accused persons. The overt-acts attributed against Accused No.44 is that, he being a media person, while the incident was being videographed, asked the assailants to lift the faces of the girls so that proper videograph could be made. The statement of CWs.1 to 9 prima-facie indicates that accused No.44 also came to the scene of occurrence with the other accused persons and the entire incident was videographed. According to the statements of CWs. 1 to 9, the accused persons came there to prevent the birthday party being conducted and with a view to get a mileage through publicity and for that purpose, video camera men and also media people were brought with them and subsequently, the incident was telecasted in T.V. Channels repeatedly by twisting the incident and projecting them (CWs. 1 to 9 ) to the public that they had indulged in immoral activities and were consuming narcotic drugs. The evidence produced along with the charge sheet prima-facie indicates that during investigation, one Kingston - 4 GB memory card 21 and one Panasonic -16 GB memory card and Panasonic Mini DV cassettes (60 SP mode, 90 LP mode) were recovered and seized and later they were sent for examination to Keonics Cyber Lab, Mangalore, where the images and other files acquired were analysed and on examination they found no particular changes in the originality of the images. According to the charge sheet papers, during investigation, certain cash and other incriminating articles were recovered. At this stage, from the overt-acts attributed against Accused Nos. 6 & 7 it is prima-facie noticed that they were standing at the door of the house and thereby prevented the inmates from going outside the house and thereby they facilitated other assailants to commit acts of assault etc. on CWs. 1 to 9. Reading of the statements of CWs. 1 to 9 prima-facie indicates that these petitioners and other assailants came to the scene of occurrence in a group and even the persons holding video cameras were also in the said group. This prima-facie indicates that the assailants had information about the birthday party being conducted at 22 that place and they came there in a group to prevent the party and also to videograph the entire incident that takes place there. This prima-facie indicates that the assailants had shared a common object and it was a pre- planned attack. The statements of CWs. 1 to 9 further prima-facie indicates that inside the house, the assailants tried to outrage the modesty of the girls by tearing their clothes and by dragging them holding their hands. They also videographed the half-nacked boys and girls. The statements of CWs.1 to 9 further indicates that the videographs taken at the place were telecasted in TV Channels repeatedly and while telecasting the same, the entire incident was twisted and the victims were shown as having indulged in immoral activities and consuming narcotic drugs. Thus, their statements prima-facie indicates that the damage caused to their reputation in telecasting the incident is more than the actual incident. The incident on account of its wide publicity in T.V. Channels, appears to have created great amount of fear among the public in general and young boys and girls in 23 particular. The materials on record prima-facie indicates that Accused No.44 being a representative of visual media, had the information about the incident that would take place at that place. Nevertheless, the Law Enforcing Authorities were not informed. From the materials on record, it is noticed that, the police people came to the scene of occurrence about 15 to 20 minutes later. The presence of these three petitioners at that place is prima-facie established. The materials on record prima facie does not project accused No.44 as a ' whistle blower' as sought to be contended but on the other hand the materials on record prima facie indicates that he also came to that place along with the group and actively assisted video graphing the incident. Though the petitioners have not actually indulged in the acts of assault, robbery or dacoity, in view of the fact that there are reasonable grounds to indicate that these petitioners reached the place of occurrence along with other assailants, at this stage, there are reasonable grounds to believe that the petitioners had shared the common 24 object and in furtherance of the said common object, the act was accomplished. Therefore, at this stage, there are reasonable grounds to believe that the petitioners are guilty of the aforesaid offences. The repeated telecast of the event in T.V.Channels appears to have caused great damage to the reputation and dignity of CWs. 1 to 9 and it is irreversible. Prima facie, this has infringed the right of privacy of CWs. 1 to 9. The possibility of the petitioners indulging in similar activities if they are released on bail cannot be ruled-out. Accused No.44 being a representative of the media, instead of preventing such incident, prima facie appears to have encouraged the happening of incident and has helped in videographing the event and thereafter, facilitated its telecasting in T.V. Channels which has caused greater damage to the dignity and reputation of CWs.1 to 9, and projecting them in poor image.
17) Having regard to the manner in which the offences have been committed and the fear created in the 25 general public, in my opinion, release the petitioners on bail is not in public interest. CWs. 1 to 9 are the material witnesses in the case. They are shown to be residents in and around Mangalore City. Therefore, the possibility of threatening of the witnesses cannot be ruled-out. Therefore, in my considered opinion, the petitioners are not entitled for the relief of bail.
18) Before parting with the case, it is also necessary to note the conduct on the part of Accused Nos. 6 & 7. As noticed by the learned Sessions Judge in the course of the orders, Accused Nos. 6 & 7 appears to have indulged in Bench Hunting. Even before their application for bail could be filed, registered and assigned to a particular court, they appears to have made allegations against the Presiding Officer. This would prima facie indicate the conduct on the part of these petitioners. This further shows that accused Nos.6 and 7 can go to any extent for achieving their goal. This circumstance would further prima-facie indicate that 26 they are not law abiding persons and would take law into their hands. Therefore, in my opinion, the release of these petitioners on bail, is not in public interest. Therefore, they are not entitled for the relief of bail sought.
In the result, the petitions are dismissed.
Sd/-
JUDGE KGR*